13 December 2007 Edition

State killings and the struggle for justice

BY LAURA FRIEL

The decision of PSNI Chief Constable Hugh Orde to allow the North’s senior coroner access to the Stalker/Sampson report into the summary execution of six unarmed men in County Armagh in 1982 marks the latest breakthrough in the long running battle to secure a public forum to examine state killings in the North.Over 88% of those killed by the state were from the nationalist community. The majority were civilians and a significant number were children. Almost all were unarmed or posed no threat at the time they were killed. Over 90% of combatants killed by the state were republican compared to 10% loyalist. In the case of 90 killings, the perpetrators remain unidentified and the British Government denies involvement but the evidence suggests otherwise.More than twice the number of people killed directly by the state have died at the hands of unionist paramilitaries, armed and controlled by state forces. In other words around half the fatalities in the conflict resulted from the actions of state and pro-state forces.While around 15,000 republicans and nationalists have collectively served a total of over 100,000 years imprisonment, only four serving members of the British army have been jailed, serving a total of just over 15 years. The disproportionately high number of nationalists killed by state and pro-state forces has been compounded by the disproportionately low number of those responsible being held accountable both in terms of investigation and prosecution. This represents a massive justice deficit which relatives and campaign groups have been attempting to address for years. The figures also give lie to the notion most favoured by state propaganda that the British state was a neutral in the conflict rather than a key protagonist. The inquest system in the North emerged as a site of struggle as all alternative avenues of accountability and address were systematically closed down. But even coroners’ courts were not immune from British government interference. In 1985 an international lawyers inquiry into the shoot-to-kill scandal was held in Dublin headed by Kader Asmal, later a minister in post Apartheid South African.The inquiry concluded that coroners’ courts in the North “lacked the capacity to carry out fully independent and impartial inquiries” where civilians had been shot dead by crown forces on duty. The lawyers listed concerns including delays in holding inquests, often for political reasons, absence of material witnesses, the jury selection process (in the hands of the RUC) and restrictions which deprived juries from delivering a verdict. Unlike inquest juries in England and Wales, jurors in the North of Ireland were restricted to delivering ‘findings’, reiterating basic facts relating to who the person was and the medical definition of how they died. With the introduction of ‘amendments’ by the British government in 1980, coroners’ courts were denied the ability to apportion blame with even the option to deliver an ‘open’ verdict denied. In the event that someone was shot dead by British Crown forces, this bizarre restriction left the inquest unable to comment on the use of lethal force and could only deliver the ‘finding’ that the deceased died of gunshot wounds. “We felt bound to conclude,” said the international lawyers’ inquiry, “that the recent amendments to the coroners’ rules have been designed to protect members of the security forces from all public criticism.”Amnesty International reiterated the Dublin inquiry’s concern. “The procedures used to investigate disputed killings in Northern Ireland are ineffective in establishing all the facts and in making them public. In some cases evidence has shown that police investigations may have been deliberately superficial in order to protect security force personnel,” said Amnesty.“Particular restrictions on coroners’ inquests which are applicable only in Northern Ireland made such an inquest an inadequate mechanism to bring out the full facts in cases of disputed killings,” said Amnesty.Other practices also curtailed the ability of relatives and their legal teams to impact on proceedings. Families’ lawyers were not allowed prior scrutiny of evidence restricting their ability to respond to what was often dubious scientific practice. There was no opportunity to cross examine key witnesses. Those responsible for the killing could not be compelled to attend the court and their evidence was presented as a prewritten statement read out by someone else. The denial of legal aid and the difficulty of obtaining independent forensic evidence made it even more difficult for families to challenge official versions of state killings.But they did. Relatives and their legal teams asked questions and raised issues that the inquest system was never intended to answer. They challenged the constraints imposed by state and exposed investigative incompetence and cover up. Sometimes the families prevailed; many times they were frustrated but the campaign for truth and justice continued.In April 2000 the families of Gervaise McKerr, Pearse Jordan killed by the RUC, Patrick Shanaghan by loyalists colluding with state forces and those killed by the SAS in Loughgall brought their cases to the European Court of Human Rights. The British had already bowed to the inevitable and after refusing for years, signed up to the European Convention on Human Rights. A few months later the Strasburg court found the British Government guilty of violating human rights in all 12 cases brought against them. The rulings related not to the killings themselves but to the inadequacy of subsequent investigations and public scrutiny mechanisms such as the inquest. This placed the North’s inquest system at the coalface of international human rights scrutiny. By 2004 senior coroner John Leckey was writing a submission, Inquests and Human Rights in Northern Ireland as part of a public consultation process in relation to the “modernising” the coroners service. Leckey was frank:“My coronial experience in relation to holding inquests into troubles related deaths was not a happy one.“Many deaths occurred in controversial circumstances, particularly where the death resulted from direct intervention by the security forces, and the subsequent inquests were often contentious. The adequacy of a coroner’s inquest as the means of investigating such deaths was called into question and from the mid 1980s this led to an exponential growth in legal challenges.”But after “many decades of stagnation” said Leckey, “the coronial landscape now is very different to what it was twenty years ago.” And the “key reason” was the Human Rights Act. “The coronial landscape was forever changed. Within a few years of it coming into force it became noticeable to me how the human rights ‘language’ was being used routinely by bereaved families whether in court or in correspondence. I was impressed by the grasp so many non-lawyers had acquired of the important human rights concepts and of their impact on the investigation of deaths through the medium of a coroner’s inquest,” said Leckey. Of course, as clearly illustrated by yet another adjournment of the inquest into the killing of Pearse Jordan took place this week, the struggle is far from over. But there’s a small justice in the fact that some of the cases that the British have tried the hardest to suppress are those currently scheduled to be revisited, now under more favourable conditions for the victims.“We’ve been left in limbo again,” said Pearse’s father Hugh Jordan commenting on the adjournment of his son’s inquest. “I am not really surprised that the inquest has been adjourned again. This seems to be the way it operates,” said Jordan.